The New India Assurance Company Limited, SCO No.36-37, Regional Office, Sector 17 v. Sewa Singh

Mr. Gautam Bhardwaj, Advocate for Mr. N.K. Khosla, Advocate for the appellant. Mr. Inderpal Singh, Advocate for Mr. Arvind Singh, Advocate for the respondents. CORAM: HON'BLE MR. JUSTICE K. KANNAN

1. Whether Reporters of local papers may be allowed to see the judgment ? To be referred to the Reporters or not ?

2. 3. Whether the judgment should be reported in the Digest? -.- K. KANNAN J.(ORAL)

1. The appeal is at the instance of the insurance company having the benefit of defence under Section 170 of the Motor Vehicles Act on the issue of negligence as well as on the quantum of compensation assessed by the Tribunal. As regards the negligence aspect, learned counsel appearing for the insurance company would contend that there had been a contributory negligence on the part of the injured motor-cyclist, who had dashed against the insured’s jeep by his own negligent driving. On F.A.O No.2131 of 2006 2 the side of complainant, an eye witness had been examined and on the side of the respondent, no evidence had been led. The driver had remained ex prate and that afforded to the insurer the benefit of defence under Section 170 of the Motor Vehicles Act. Even the benefit, which the insurer obtained, cannot grant to an insurer a premium to draw an inference that there was no negligence on the part of the driver and the insured, when evidence had been tendered through an eye witness and he had spoken to the fact of the rash driving of the driver. Unless there had been some evidence to displace the effect of such evidence, it cannot be contended that the claimant has not established the aspect of negligence. The Tribunal found the evidence of PW-3, Sewa Singh to be adequate to hold that the driver of the offending vehicle had not observed the traffic rules and even the police had carried out the investigation and submitted a report under Section 173 Cr.P.C., which had been marked as P-5 that showed that the driver of the vehicle had been prosecuted for rash and negligent driving and that the case was till pending.

2. Learned counsel refers to the fact that there was no negligence on the part of the insured’s driver. I have examined the document and I have found from the document no help for the respondent. The claimant was said to have been driving from west towards east and the driver of the insured was supposed to have been driving the vehicle from north to south. The site of the accident is marked as A, which is on the western of the median and it would only mean that the jeep driver has come to the extreme F.A.O No.2131 of 2006 3 right side of the road. The site plan does nothing to advance the case of the insurer that there was no negligence on the part of the driver of the jeep. I affirm the finding of the Tribunal that the driver of the insured’s jeep was responsible for the accident and reject the plea of contributory negligence as contended by learned counsel for the insurance company.

3. As regards the claim for damages for the injury suffered in the accident, the voluminous documentary evidence, which is exhibited through Ex.P1 to Ex.P356 reveal that the claimant had a large spell of treatment in various hospitals and he has received grievous injuries that were sufficiently severe to cripple him substantially at 53%. The disability certificate which has been marked as P-6/A reveals that there is persistent infection by the injuries caused to the right leg and the range of movements of the leg have been severely affected. Even the photographs affixed to the disability certificate reveals that legs of the claimant have been seriously deformed by the accident. Medical bills produced before the Court themselves total to Rs.4 lacs and odd and the Tribunal has awarded the same. For 53% disability which has been assessed, the Tribunal awarded Rs.1,06,000/- and added another Rs.20,000/- for pain and suffering. The claimant was said to have been SS Master/TGT in a Government Senior Secondary School and he had also averred that he had 7 acres of land, which he was cultivating in the village of Kalheri and posted at District Karnal. He had given evidence to the effect that his injuries in the right upper arm between the shoulder and elbow F.A.O No.2131 of 2006 4 and injuries in his leg including fracture and large wound have disabled him totally from doing any work in his agriculture fields. The compensation awarded to the extent of disability, I would take that to relate to the loss of earning and the difficulty that he may have to undergo by availing the services of some other person, even the compensation for pain and suffering in a case where there have been multiple fractures both of the arm and the leg at Rs.20,000/- when the claimant was undergoing a long spell of treatment at Karnal in Haryana Nursing Home from 27.09.2002 to

11.10.2002 and again at Mata Chanan Devi Hospital at Delhi for further clinical management between the period from 11.10.2002 to 18.11.2002 is only modest. The Tribunal ought to have also provided for transportation expenses which ought to have been incurred for having to shuttle between his native village to Karnal and later to Delhi and the evidence given by him that he was still undergoing treatment as an out patient. The overall compensation determined by the Tribunal as Rs.6,26,000/- is just and I see no scope for interference in appeal.

4. The award is confirmed and the appeal is dismissed. November 08, 2010 Pankaj* (K. KANNAN) JUDGE